Saleeba v Wilke

[2007] QSC 298

SUPREME COURT OF QUEENSLAND

CITATION:	Saleeba v Wilke [2007] QSC 298
PARTIES:	CHRISTINA DIANA SALEEBA AS EXECUTOR FOR THE LATE JOHN RUDOLF HEDKE (ALSO KNOWN AS JOACHIM RUDOLF HEDKE) (applicant) v JOSEPH HANS WILKE (respondent)
FILE NO:	BS 398 of 2005
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	19 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	9 October 2007
JUDGE:	Chesterman J
ORDER:	Application dismissed
CATCHWORDS:	REAL PROPERTY - GENERAL PRINCIPLES - INTERESTS IN LAND – INCIDENTS - JOINT TENANCY – SEVERANCE - OTHER CASES – where the respondent held property as joint tenant with another – where a dispute had arisen between them – where the respondent made a written offer to sell the property and divide the proceeds equally - where the other co-owner accepted but only after the lapse of the offer – where there was no further evidence of any agreement after the late acceptance - where no further steps were taken to sell the property before the death of the co-owner – whether the correspondence constituted a severance of the joint tenancy – whether at the time of the co-owner’s death the co-owners held the property as joint tenants or tenants in common  whether on the co-owner’s death the respondent held the entire property as sole owner Abela v Public Trustee (1983) 1 NSWLR 308, applied Calabrese v Miuccio (No2) [1985] 1 Qd R 17, cited Corin & Anor v Patton (1990) 169 CLR 540, applied Lyons v Lyons [1967] VR 169, considered Magill v Magill NSWCA 40142 of 1993, considered Public Trustee v Pfeiffle [1991] 1 VR 19, applied Slater v Slater Eq 1365 of 1986 Equity Division 16 June 1987, considered Sprott v Harper [2000] QCA 391, applied Williams v Hensman (1861) 70 ER 862, applied Wilson v Bell (1843) 5 Ir. Eq. R 501, considered
COUNSEL:	Ms D.A Skennar for the applicant Mr C Jennings for the respondent
SOLICITORS:	Chris Reeve & Co for the applicant Deacons for the respondent

1. This efficiently and economically argued application requires only an answer to the question whether a joint tenancy was severed during the lifetime of the joint tenants.  The applicant is the daughter and executrix of the late John Hedke, one of the joint tenants, who died on 28 June 2004.  The respondent, Mr Wilke, is the surviving

   
   

   co-owner.

1. In early 1994 Messrs Hedke and Wilke agreed to buy a residential home unit on Hilton Terrace at Tewantin, Lot 2 on BUP 5923, County of March, Parish of Weyba, for the sum of $100,000.  On or about 16 March 1994 Mr Wilke for himself and his nominee contracted to purchase the unit.  Title to it was duly conveyed to the late Mr Hedke and Mr Wilke as joint tenants, and they became registered proprietors on 16 November 1994.

1. The applicant seeks a number of declarations but in particular a declaration that at the time of his death Mr John Hedke and the respondent held…